People v. Brockenshire
| Decision Date | 01 October 1993 |
| Citation | 197 A.D.2d 921,602 N.Y.S.2d 459 |
| Parties | PEOPLE of the State of New York, Respondent, v. Dennis J. BROCKENSHIRE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Stephen Lindley, Rochester, for appellant.
Robert P. Isaac, Jr., Little Valley, for respondent.
Before DENMAN, P.J., and BALIO, FALLON, DOERR and DAVIS, JJ.
Defendant had an absolute right to be present at the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) that was conducted in his absence (see, People v. Cruz, 81 N.Y.2d 738, 739, 593 N.Y.S.2d 767, 609 N.E.2d 120; People v. Beasley, 80 N.Y.2d 981, 982, 592 N.Y.S.2d 644, 607 N.E.2d 791, reconsideration denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393; People v. Gebrosky, 80 N.Y.2d 995, 996, 592 N.Y.S.2d 650, 607 N.E.2d 797; People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 595 N.E.2d 836). Defense counsel's consent to defendant's absence does not permit an inference that defendant knowingly, voluntarily, and intelligently relinquished his right to be present at the Sandoval hearing (see, People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313; People v. Chiarenza, 163 A.D.2d 900, 558 N.Y.S.2d 419, lv. denied 76 N.Y.2d 892, 561 N.Y.S.2d 554, 562 N.E.2d 879; People v. Gaines, 144 A.D.2d 941, 534 N.Y.S.2d 257; cf., People v. Carey, 187 A.D.2d 942, 593 N.Y.S.2d 489, lv. denied 81 N.Y.2d 838, 595 N.Y.S.2d 737, 611 N.E.2d 776). Defense counsel did not tell the court what defendant had been told concerning the nature of his right to be present, nor did the court make an express finding that defendant had validly waived his right to be present (see, People v. Gaines, supra ). Inasmuch as defendant was convicted of the lesser included offenses of manslaughter in the second degree under count one of the indictment and three counts of reckless endangerment in the second degree under counts three, four and five, the indictment is dismissed without prejudice to the People to re-present any appropriate charges under those counts to another Grand Jury (see, People v. Gonzalez, 61 N.Y.2d 633, 635, 471 N.Y.S.2d 847, 459 N.E.2d 1285; People v. Grant, 197 A.D.2d 910, 602 N.Y.S.2d 585 [decided herewith]. In light of our conclusion, it is unnecessary to reach the remaining issues raised by defendant in his pro se supplemental brief.
Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People to re-present...
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Clark v. Stinson
...we note that those cases were likewise decided after the 1987 entry of judgment in Clark's appeal. See, e.g., People v. Brockenshire, 602 N.Y.S.2d 459, 459-60 (4th Dep't 1993) (finding that defense counsel's consent to defendant's absence did not permit an inference of knowing and voluntary......
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People v. McMoore
...in defendant's absence may not constitute an effective waiver of defendant's right to be present (see, People v. Brockenshire, 197 A.D.2d 921, 602 N.Y.S.2d 459 [1993, 4th Dept], lv. denied 82 N.Y.2d 848, 606 N.Y.S.2d 599, 627 N.E.2d 521). The People argue that defendant's presence at this c......
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People v. Geddis, 136
...potential bias made it impossible for him to knowingly and voluntarily waive his right to be present (see People v. Brockenshire, 197 A.D.2d 921, 921, 602 N.Y.S.2d 459 [4th Dept. 1993], lv denied 82 N.Y.2d 848, 606 N.Y.S.2d 599, 627 N.E.2d 521 [1993] ; cf. People v. Flinn, 22 N.Y.3d 599, 60......
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People v. Dennis
...Defendant indicated his desire to choose that alternative and defense counsel concurred. Defendant's reliance upon People v. Brockenshire (197 A.D.2d 921, 602 N.Y.S.2d 459, lv. denied 82 N.Y.2d 848, 606 N.Y.S.2d 599, 627 N.E.2d 521) is misplaced because there defense counsel's consent to de......